CIV/APN/86/85
IN THE HIGH COURT OF LESOTHO
In the Application of :
ODILON TELI TELI Applicant
V
M.M. QHOBELA 1st Respondent
CHAIRMAN OF THE P.S.C. 2nd Respondent
MINISTER IN-CHARGE OF THE P.S.C. 3rd Respondent
MINISTER OF FINANCE 4th Respondent
SOLICITOR-GENERAL 5th Respondent
JUDGMENT
Delivered by the Hon. Acting Mr. Justice D.S. LEVY on the 26th November, 1985.
In this natter the Applicant is a public servant in the employment of the Ministry of Finance as an accountant.
At the material time he was stationed at Qacha's Nek where he fulfilled the duties of Sub-Accountant.
On 11th July 1984 Applicant was the subject of disciplinary proceedings on various charges brought against him under Public Service Order 1970.
These charges may be summarised as follows :-
Count 1
He intentionally altered or erased entries in the Sub-Accountant's cash book and cash analysis book with intent to deceive.
Alternatively
He knowingly made false misleading and/or inaccurate statements in an official document.
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Count 2
He failed to comply with an official instruction.
Count 3
He improperly used property or stores in his official custody or control or failed to account for or take reasonable care of such
property or stores as a result of which the Lesotho Government has suffered a loss or general deficiency amounting to M2404.88.
It will be readily seen therefore that Count 1 contains all the elements of the crime of fraud while count 3 contains in its main allegations a charge of theft by way of a general deficiency of funds or property in Applicant's hands.
From the very day when Applicant was interdicted from performing his duties while these alleged irregularities which led to these charges were being investigated, applicant protested that the allegations being made against him amounted to criminal charges on which he should be tried in the Criminal Courts.
Notwithstanding this protest by Applicant, the disciplinary proceedings were continued against him and at the hearing before the Adjudicator, where Applicant was unrepresented, he was found guilty on all the main charges and sentenced to be removed from office by way of dismissal.
Applicant's founding affidavit contains this statement: "I say the failure to have the misuse of Government funds as a Criminal case constitutes a serious irregularity as I believe the Public Service Commission has no competence
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to try cases of theft." Applicant refers again to his previous request to the Public Service Commission that he should be tried for these offences in a Criminal Court.
Apart from this jurisdictional issue, the Applicant has also attacked the proceedings before the Adjudicator and his findings as being irregular on various grounds and contrary to the principles of natural justice. Suffice it for me to say that I find no support for Applicant's allegations on this score in the record of the proceedings which appear to have been conducted by the Adjudicator
fairly and properly. I do not wish to examine these findings for the reason that my conclusions in this matter render this unnecessary and undesirable.
Applicant's main contention is based upon the provisions of the Public Service Commission Rules 1970. Section 4(1) (vi) of the Public Service Order 1970 empowers the responsible Minister to make rules regulating the procedure of the Public Service Commission.
In exercise of that power the responsible Minister made the Public Service Commission Rules 1970 of which Rule 5-41 is apposite. This rule directs the head of a Department who has been informed that an officer has committed a criminal offence to consult the Director of Public Prosecutions and seek his directions whether a prosecution is to be instituted. The rule continues (in the present tense) that if the D.P.P. directs that a criminal prosecution is to take place, the head of the department shall not proceed with a disciplinary charge involving the same facts as the prosecution until after the
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conclusion of the criminal proceedings. If the D.P.P. directs that no prosecution is to take place and if the head of the Department
propose to commence disciplinary proceedings he prepares a charge.
It seems to me that a very proper reason for this rule is that an officer should not be charged with the offence of a breach of discipline which amounts to a criminal offence before the latter has been disposed of by the D.P.P. whether by prosecution or by a decision not to prosecute. An officer whose employment is governed by these rules should know that he is free to air his defence as fully as possible at any disciplinary inquiry without fear of thereby exposing himself to criminal prosecution. The rule imposes on the Head of Department the duty to protect the interests of the officer concerned by first referring the charge to the D.P.P. and not to institute any disciplinary proceedings until the D,P.P. has given his directions to prosecute or not to prosecute as the case may be.
It seems to me that until the D.P.P. has given such directions the adjudicator has no jurisdiction to hear the disciplinary charges against the officer unless possibly the officer, with full knowledge, acquiesces in the continuance of the disciplinary inquiry. It was common cause that no consultation on the matter had taken place with the D.P.P., and that this rule had not been complied with, nor did applicant acquiesce. On the contrary, he protested vigorously.
Rooney J. in CA. 269/82 Mafa V Minister In Charge of Public Service said in a similar matter that "a breach of
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discipline which amounts to a criminal charge may not be brought against an officer unless the matter has first been referred to (the D.P.P.)." Rooney J. does not motivate this bald statement but I am satisfied for the reasons set out above that he was right and that I should follow that judgment.
It was contended by the Respondents that Applicant had not taken this point at the tribunal and that he is estopped from now doing so. Even if estoppel were an available answer to Applicant's attack on the proceedings, before the Adjudicator, I am satisfied that he sufficiently raised his objection to being tried on criminal charges by the adjudicator before a prosecution was instituted. This objection carried with it the implication that the objection would be satisfied of necessity if the D.P.P. refused to prosecute.
It was further contended by Respondents that the Applicant was himself the local head of his department and that he would not be obliged by the rule to refer his own conduct to the D.P.P. This argument overlooks the provisions of section 5(4) of the Public Service Order 1970, as amended, which assigns the duty of charging the head of a department with a breach of discipline to the Government Secretary.
I am satisfied therefore that the proceedings of the adjudicator against the Applicant held on 1st July 1984 and on following days and the finding of the adjudicator and the penalty imposed by him on the Applicant should be
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set aside and that the Respondents should pay the costs of these proceedings including the reserved costs and it is so ordered.
D.S. LEVY"
ACTING JUDGE
26th November, 1985 .
For the Applicant : Mr, Maqutu
For the Respondents : Mr. Mpopo.